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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 2 of 13 II. PARTIES1. Plaintiff Jose Carlos De Souza is a native and citizen of Brazil. He currently resides at 14 Lexington Drive in Beverly, Massachusetts.2. Plaintiff Sirelene Maria Grobberio Stefanon is native and citizen of Brazil. She also currently resides at 14 Lexington Drive in Beverly, Massachusetts.3. Defendant, Janet Napolitano, is the Secretary of the U.S. Department of Homeland Security (“DHS”), and this action is brought against her in her official capacity. She is charged with enforcement of the INA, and is further authorized to delegate such powers and authority to subordinate employees of DHS, including, but not limited to, USCIS. USCIS is the agency within DHS to whom the approval and revocation of I- 140 petitions has been delegated, and to whom the adjudication of I-485 applications for adjustment of status has in part been delegated, and is subject to the Secretary’s supervision.4. Defendant, Eric Holder, is the Attorney General of the United States and this action is brought against him in his official capacity. His office is charged with the fair administration of justice in the United States and has authority over DHS and the United States Citizenship and Immigration Service (“USCIS”), among other departments relating to aliens in the United States.5. Defendant, Alejandro Mayorkas, is the Director of USCIS and this action is brought against him in his official capacity. He is the official generally charged with supervisory authority over all operations of USCIS.6. Defendant, David Roark, is the Director of the Texas Service Center within USCIS, and this action is brought against him in his official capacity. He is the official 2

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 3 of 13 directly charged with adjudication of approvals, revocations and appeals regarding I- 140 petitions. III. JURISDICTION AND VENUE7. This Court has jurisdiction over the present action pursuant to 28 U.S.C. § 1361, regarding an action to compel an officer of the United States to perform his duty; 28 U.S.C. § 1331, Federal Question Jurisdiction; 28 U.S.C. § 2201, the Declaratory Judgment Act; 5 U.S.C. § 702, the Administrative Procedures Act; 8 U.S.C. § 1329, the Immigration and Nationality Act, providing for jurisdiction of this Court over actions arising under said Act; and the Fifth Amendment of the United States Constitution.8. Venue is properly with this Court, pursuant to 28 U.S.C. § 1391(e), in that this is an action against officers and agencies of the United States in their official capacities, brought in the District where Plaintiff resides. IV. FACTUAL AND PROCEDURAL BACKGROUND9. Plaintiffs are both natives and citizens of Brazil.10. Mr. De Souza worked at SPI Empreendimentos E Comercio Ltda (d/b/a Fantasia Zero and/or Restaurante Zero) in Belo Horizonte, Minas Gerais, Brazil, where he was employed as a cook from 1993 to 1996.11. Mr. De Souza entered the United States on April 25, 1998 on a B-2 visa. In September 1998, he began working for Creative Catering in Beverly, Massachusetts, as a full time cook. At that time, Mr. De Souza was also employed as a cook at Status Violator! Century House restaurant. 3

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 4 of 1312. In June 2001, Creative Catering, filed a form ETA-750 labor certification application with the Department of Labor (“DOL”) on Mr. De Souza’s behalf, and the DOL assigned the case a priority date of June 18, 2001. Missed April 30, 2001 deadline!13. Under the statutory and regulatory scheme establishing employment-based immigration, the Department of Labor has jurisdiction over the labor recruitment process and the determinations of labor shortages and impact of alien employment on American workers.14. On June 27, 2002, DOL certified Creative Catering’s labor certification application.15. Under the regulations in force at the time, such certification was permitted only after review and determination by a Department of Labor (DOL) Certifying Officer that the applicant had complied with all regulations, that no U.S. worker was able to take the job, and that the certification would not have an adverse impact on U.S. workers similarly employed.16. Based on the approval of the labor certification, Creative Catering filed a Form I-140, Immigrant Petition for Alien Worker (“petition”) on Mr. De Souza’s behalf, which was received on July 23, 2002.17. Creative Catering’s petition was approved by United States Citizenship and Immigration Services (“USCIS”) on March 28, 2003.18. The approval of this petition rendered Petitioners—Mr. De Souza as the primary beneficiary and Ms. Stefanon as a derivative—eligible for adjustment of status to permanent residence. Not eligible under INA 245(i).19. Mr. De Souza and Ms. Stefanon each filed a Form I-485, Application to Adjust Status or Register Permanent Residence, on May 23, 2003. Ineligible for adjustment. 4

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 5 of 1320. Section 204(j) of the Immigration and Nationality Act (8 U.S.C. § 1154(j)) allows beneficiaries of I-485 applications that are delayed longer than six months to change employers without invalidating their petitions as long as the new position is in the same or similar classification. This process is known as “porting.” See Al Wazzan.21. In January 2006, after the Plaintiffs’ I-485 application had been pending for nearly three years, Mr. De Souza “ported” his approved I-140 petition to a new employer, Century House in Peabody, Massachusetts.22. In May 2006, Plaintiff ported again to Stromburg’s Restaurant in Salem, Massachusetts, but he later ported back to Century House, where he is presently employed.23. On February 10, 2009, after Plaintiffs’ adjustment application had been pending for nearly six years, USCIS issued a Notice of Intent to Revoke (“NOIR”) the underlying I-140 petition upon which Plaintiffs’ eligibility for adjustment rested.24. This notice did not disclose nor reference any evidence in the record in support of Non- disclosure is revocation and instead relied on allegations in other unrelated cases involving OK if a current Plaintiffs’ and Creative Catering’s prior counsel, Attorney John K. Dvorak. criminal fraud25. On February 26, 2009, USCIS issued a second NOIR. investigation would be26. Again, this notice indicated that the Service based its intent to revoke on the harmed. association with attorney Dvorak and cited no evidence in the record in support of revocation.27. On March 5, 2009, Petitioners and Century House filed a response to the February 10, 2009 NOIR, and on March 20, 2009, filed a supplemental memorandum of law, to be considered along with their NOIR response. 5

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 6 of 13 28. These two submissions provided substantial evidence demonstrating Petitioner’s bona fide employment, as well as evidence that Creative Catering complied with all of the DOL’s requirements when it applied for a labor certification and, subsequently, filed the petition on Mr. De Souza’s behalf.There was a 29. The Responses also included documentary evidence of Mr. De Souza’s requisiteton of uselessprocessing in employment experience when he began working for Creative Catering.this case.The I-485 30. On March 27, 2009, USCIS issued a Notice of Revocation, stating that “nothing waswas not acceptable and should have been immediately rejected! found in the record directly documenting that all regulations and stipulations in the labor certification process were truthfully and accurately followed.” 31. USCIS also found that “it cannot be accepted the beneficiary did indeed possess the alleged Brazilian work experience.” 32. USCIS cited no evidence in support of its finding and explicitly stated that its finding was being made “notwithstanding” evidence to the contrary submitted in response to the NOIR. 33. On April 7, 2009, Plaintiffs and Century House filed a Form I-290B, Notice of Appeal to the Administrative Appeals Office (“AAO”) based on the March 27, 2009 denial issued by the USCIS Texas Service Center (“TSC”). This appeal was received by the TSC on April 9, 2009. 34. While the appeal was directed to the AAO, regulations require the appeal first be sent to the office whose decision is being appealed. That office is then charged with forwarding the appeal to the AAO unless it decides to take favorable action. 6

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 7 of 1335. On May 5, 2009, Plaintiffs filed a supplemental brief in support of their appeal. The appeal and the supplemental brief stated that Century House was the appealing entity, as Plaintiff had “ported” there in or around 2006 and so was an interested party.36. On September 14, 2009, the TSC denied the appeal “because Century House Restaurant is not entitled to file the appeal. An appeal can only be filed by an affected party.” The decision made no reference to the evidence in the record and the TSC refused to forward the appeal to the AAO.37. On May 14, 2009, USCIS issued a second Notice of Revocation based on the February 26, 2009 NOIR. In their denial, USCIS stated that “the totality of our records does not establish you have provided a response to the Intent to Revoke from someone legally entitled to represent the petitioner,” and, furthermore, “no evidence from you has been submitted to overcome suspicions.”38. Plaintiffs and Century House submitted a second Form I-290B, Notice of Appeal, based on the May 14, 2009 denial issued by the TSC. The TSC received this appeal on June 1, 2009. On June 23, 2009, Plaintiffs filed a supplemental brief in support of their appeal, which also stated that Century House was the appealing entity.39. On August 27, 2009, the TSC also denied this appeal because “Century House Restaurant is not entitled to file the appeal,” as “an appeal can only be filed by an affected party.” Again, the TSC did not reference any evidence in the record, and again refused to forward the appeal to the Administrative Appeals Office.40. On September 9, 2009, Plaintiffs filed a Request for Reconsideration of the USCIS decision dated August 27, 2009, rejecting the Notice of Appeal. Plaintiffs 7

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 8 of 13 subsequently sent this request a second time on October 5, 2009, as they had yet to receive a confirmation of its receipt, and still have not. 41. On October 30, 2009, USCIS denied Plaintiffs’ Applications to Register Permanent Residence or Adjust Status (I-485) based on the I-140 Petition revocation. 42. Plaintiffs were placed in removal proceedings by filing of a Notice to Appear, dated September 13, 2010, with the Immigration Court in Boston, MA.It would seem that a pending Removal Proceeding is not ripe for review. 43. Plaintiffs seek judicial review USCIS’s refusal to rely on the record in making its decisions, its failure to provide meaningful notice and an opportunity to respond to the grounds for revocation, its refusal to give Petitioners and Century House standing in these proceedings as interested parties, and its refusal to forward appeal of the revocation for adjudication by the AAO.Even if a valid I-140 were approved, adjustment is precluded under INA 245(i). V. EXHAUSTION OF REMEDIES 44. Plaintiffs have exhausted their administrative remedies to the extent required by law, and their only remedy is by way of this judicial action. 45. USCIS revoked the plaintiff’s form I-140 approval twice, and subsequently denied the applications to adjust status. The Plaintiffs appealed the both of the decisions to revoke approval of the I-140 through two appeals to the Administrative Appeals Office of USCIS, which the TSC refused to forward for consideration, and filed a motion to reconsider the denial of those appeals with the TSC.An appeal filed by someone who is not an "affected party" is properly rejected. 8

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 9 of 13 VI. LEGAL ARGUMENTSAdministrative Procedures Act46. Pursuant to 8 C.F.R. §205.2, revocation of the approval of a petition will be made only on notice to the petitioner. This regulation is intended to give interested parties an opportunity to respond to allegations and rebut evidence.47. 8 C.F.R. § 103.3(a)(2)(iv) governs the filing of appeals to the AAO and requires that the appeal be filed with the officer that made the unfavorable decision. The reviewing official then has the opportunity to take favorable action or, finding such action unwarranted, must forward the appeal the AAO.48. 8 C.F.R. § 204.5 establishes a division of tasks between the Department of Labor and USCIS, consistent with the statutory scheme, that assigns the Department of Labor responsibility for conducting alien employment labor certification, determining whether there is a shortage of American workers in a given occupation, and whether employment of a specific alien will have an adverse impact on American workers.49. The regulations governing the labor certification process are described in the Department of Labor—rather than USCIS—regulations at 20 C.F.R. § 656.50. Defendants violated the Administrative Procedures Act in the following ways: a. By revoking the I-140 Petition without giving the interested parties meaningful notice and an opportunity to respond; b. By refusing to forward the appeal to the AAO; c. By exceeded their regulatory authority in conducting an arbitrary de novo review of Department of Labor findings regarding those processes over which the Department of Labor has jurisdiction and compliance with Department of Labor regulations; 9

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 10 of 13 d. By making a decision that is arbitrary and capricious and unsupported by substantial evidence in the record. The Immigration and Nationality Act 51. Section 205 of the Immigration and Nationality (8 U.S.C. § 1155) act provides that the approval of a visa petition may be revoked only for “good and sufficient cause.” 52. Section 204(j) of the Immigration and Nationality Act (8 U.S.C. § 1154(j)) permits the beneficiaries of approved I-140 petitions whose adjustment applications had been pending for more than 180 days to change employers without invalidating the I-140 petition. This provision was intended to confer job flexibility for long delayed applicants. The I-140 must be valid upon initial filing in order to port it! Additionally, the I-485 was also invalid from filing date! 53. Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. § 212(a)(5)(A)) tasks the Department of Labor, not USCIS, with certifying that there is a shortage of American workers able and willing to perform a particular occupation and that allowing an alien to perform it will not harm American workers. 54. The Defendants violated the Immigration and Nationality Act in the following ways: a. By failing to meet any rational standard and so failing to demonstrate good and sufficient cause; b. By basing its decision on undisclosed evidence not placed in the record; c. By making a decision that is arbitrary and capricious and unsupported by substantial evidence in the record; d. By refusing to recognize Mr. De Souza’s continued interest in the validity of the petition and his right to job flexibility;He had NO RIGHT to work illegally. He came as a B-2 TOURIST, violated status andoverstayed. He missed out on the INA 245(i) extension (filing deadline was missed),andthe I-485s should have been rejected upon filing. 10

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 11 of 13 e. By refusing to recognize Mr. De Souza’s current employer’s interest in the petition and grant standing to respond and appeal; How do you port someone elses FRAUD? You must commit your own FRAUD. f. By exceeded its statutory authority in attempting to conduct an arbitrary de novo review of the Department of Labor’s findings regarding compliance with Department of Labor regulations and the labor certification process; g. By refusing to consider the evidence filed in support of the petition. Due Process 55. An approved I-140 Petitioner gives the beneficiary the right to seek adjustment of status to that of a permanent resident. Eligibility to apply for adjustment of status is a vested right even if that form of relief is ultimately at the discretion of the Executive Branch.They benefited from a mistake! Go home. Brazil has gotten better, it is fighting anillegal 56. Defendants approved the I-140 Petition, which formed the basis for his and his wife’salien problem of its own now. See below! Application for Adjustment of Status and eligibility for work authorization, and left that decision undisturbed for nearly seven years. This approval and the pendency of his application placed Plaintiffs in a period of authorized stay and allowed them to work in the United States. Plaintiffs relied upon the approved I-140 Petition to work and develop substantial ties in the United States in the six years during which USCIS took no action on his adjustment application. 57. To not allow the Plaintiff, a beneficiary of an approved I-140 Petition, to be heard in an appeal of the revocation of that petition, when the revocation affects his eligibility to seek adjustment of status, denies him a vested right and violates his right to due process. To link to this article, copy this persistent link: http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402948_text (Jan. 20, 2012) During a meeting on January 13, 2012, in Rio de Janeiro, the Brazilian Minister of Defense, Celso Amorim, stated that Brazil needs to rethink its immigration policy because of the economic impact created by the increasing number of immigrants entering the country irregularly in search of better living conditions. (Política de Imigração Brasileira Precisa Ser Revista, Diz Amorim, O GLOBO (Jan 13, 2012).) 11

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Case 1:12-cv-10197-NMG Document 1 Filed 02/01/12 Page 12 of 1358. Revoking Plaintiff’s I-140 Petition almost six years after it was approved, when the I- 140 Petition at the time of approval complied with the Department of Labor requirements and without good and sufficient cause for the revocation, is a violation of Plaintiff’s procedural due process rights.59. The statutes and regulations require revocation only for good and sufficient cause and only upon notice and an opportunity to respond are intended to ensure that immigration proceedings meet the requirements of due process. The failure to follow those procedures in order to arbitrarily deprive the Plaintiffs of the lives they have established violates their rights to due process. VII. PRAYER FOR RELIEF Wherefore, Plaintiffs pray that this Honorable Court: a. Order the Defendants to have their agents reinstate the Plaintiff’s form I-140 and adjudicate the Plaintiffs’ applications for adjustment of status; or, in the alternative, b. Order the Defendants to have their agents consider the appeal of the revocation of the Plaintiff’s form I-140 on its merits and adjudicate the Plaintiffs’ applications for adjustment of status; and c. Grant such other and further relief as this Honorable Court deems proper under the circumstances; and d. Grant attorney’s fees and costs of this action pursuant to the EAJA, 5 U.S.C. § 504, 5 U.S.C. § 2412(d), et seq. 12